Why Left and Right Talk Past Each Other on Race

The Supreme Court's Schuette v. Coalition to Defend Affirmative Action decision has opened anew the race debate.

Fifty years after the passage of the Civil Rights Act of 1964, are we finally inching toward the ideal of color-blind equal rights under the law and nondiscrimination regardless of race? This remains very much an open question.

There are two ways of looking at the Supreme Court’s Schuette v. Coalition to Defend Affirmative Action decision. On the one hand, a strong majority—including one justice from the Court’s liberal bloc—upheld Michigan’s right to ban racial preferences via ballot initiative, even if that means the voters defy elite opinion at state universities.

The result vindicates a Ward Connerly referendum based on the plain language of the 1964 Civil Rights Act. It is also consistent with the Court’s uneven but unmistakable practice of whittling away at race-conscious affirmative action while refusing to uproot it altogether, beginning with Regents of University of California v. Bakke.

At the same time, the majority’s decision was limited and equivocal while Justice Sonia Sotomayor’s dissent was blistering and straightforward. Justice Anthony Kennedy wrote, in characteristic Anthony Kennedy fashion, that the ruling was “not about the constitutionality, or the merits, of race-conscious admissions policies in higher education” but rather “whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admission.”

So instead of finding that racial discrimination—whether perpetrated against blacks, whites or Asians—is unconstitutional and forbidden, the Supremes merely concluded that Michigan voters had a right to ban it through the democratic process.

If this seems like tendentious nit-picking, contrast this pale pastels approach to Sotomayor’s. The Obama-appointed justice argues that banning racial discrimination, provided that it is benevolent discrimination intended to advance minority groups, is itself a form of racial discrimination. Or as Sotomayor put it in her own words, “a majority of the Michigan electorate changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities.”

Legally, one side of this debate is borrowing ever more heavily from the schools of critical race and legal theory while the other is becoming less rooted in the principle of nondiscrimination. Perhaps some of the apparent timidity was intended to win Stephen Breyer’s vote and avoid a splint between Republican and Democratic appointees—though again, it is Justice Kennedy we are dealing with here.

Nevertheless, it was hard to avoid the impression that the Court was almost apologizing for siding with Michigan against racial preferences. Sotomayor mounted an unapologetic political and legal defense of racial preferences, though she did bizarrely concede citizens have the right to lobby university bureaucrats against them.

Although this has been largely unspoken in the decades since the civil rights laws passed, liberals and conservatives have developed very different ideas of what constitutes racism and racial discrimination.

Conservatives largely see racism as racial hatred, treating people as groups rather than individuals and then displaying animus toward members of those groups. Discrimination is deliberately treating individuals differently on the basis of race.

Liberals tend to see racism as a desire to preserve a socioeconomic structure that grew out of slavery and segregation, maintaining a privileged status for some and a disadvantaged status for others. Discrimination is anything that has a negative disparate impact on protected minorities.

There is an element of truth to the liberal view. Obviously, the effects of slavery and an impoverishing racial caste system are going to linger for generations. The descendants of those victimized by human bondage or Jim Crow are going to inherit less social and economic capital than those who were not victimized.

And while a plausible case can be made be made that more recent phenomena—like the decline of marriage and the nuclear family in large parts of the black community or the disappearance of work in many communities—do more than racism to perpetuate this inequality today, these things cannot be hermetically sealed off from the injustices of the past.

The problem is that separating individuals into victim and oppressor groups has the potential to create fresh new injustices. It also obscures other facts, such as the high number of affluent minorities and poor whites living in a country where Barack Obama is president and David Duke is a pathetic joke. “White privilege” is too often used merely as a synonym for “shut up.”

Where Hubert Humphrey once promised to eat the paper the Civil Rights Act of 1964 was printed on if it ever resulted in quotas, many contemporary liberals would consider the landmark legislation racist if it did anything but.

W. James Antle III is editor of the Daily Caller News Foundation and author of the new book Devouring Freedom: Can Big Government Ever Be Stopped?